Congress Introduces Legislation to Allow Non-Profits to Make Political Endorsements

Members of the Congress introduced legislation on Wednesday that would change the Internal Revenue Service (IRS)’s tax code to allow non-profit entities to endorse or oppose political candidates without having their tax-exempt statuses revoked.

Under the Johnson Amendment of 1954, non-profit groups — including houses of worship, charities, and universities — are not allowed to “participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office,” according to the IRS tax code. Hence, churches are allowed to have non-partisan voter drives, for example, but they aren't allowed to endorse or oppose a candidate.

The law came into the limelight recently as Trump made it one of his main talking points during his presidential campaign, and at the National Prayer Breakfast on Thursday, Trump reiterated that he would “get rid of and totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution.”

The recently introduced legislation, called The Free Speech Fairness Act, would allow non-profits to make statements in support of or in opposition to political campaigns if they are “made in the ordinary course of the organization’s regular and customary activities in carrying out its exempt purpose.” This means that churches and other non-profits would still not be allowed to actively participate in political campaigning, but their tax-exempt status wouldn’t be revoked if they simply made political statements in the course of their regular activities.

Those political statements must also not incur “more than de minimis” expenses, meaning, the minimal amount of expenses. This portion of the legislation would thus prohibit non-profits from publishing or broadcasting ads, or any other expensive endeavors, on behalf of political campaigns.

“Any nonprofit institution shouldn’t have to worry about the IRS watching and monitoring what they say,” said Senator James Lankford (R-Okla.), who introduced the act in Senate, along with Steve Scalise (R-La.) and Jody Hice (R-Ga.) who introduced the act in the House of Representatives.

“When you work for a nonprofit organization, you don’t lose your right to assembly, you don’t lose your right to free press, you don’t lose your Second Amendment rights, you don’t lose your right to privacy. But for whatever reason, we have said that if you work for a nonprofit organization, you do lose your right to free speech. That’s absurd,” Lankford said.

Though Trump has focused on pastors being unable to endorse political candidates from the pulpit when discussing the Johnson Amendment, and though all of those who introduced the act are Republican, this legislation would allow endorsements and opposition for all non-profit entities across the board.

“It’s not obvious that the Free Speech Fairness Act would favor Republicans,” wrote Daniel Hemel, an assistant professor of law at the University of Chicago. “It would allow Planned Parenthood the same freedom to endorse candidates that it would give to, say, Samaritan’s Purse.”

Some who are religious also say that they wouldn’t want pastors to take political sides on the pulpit. Amanda Tyler, the executive director of the Baptist Joint Committee for Religious Liberty, was quoted by the New York Times as saying that doing so “would usher our partisan divisions into the pews.”

In a September 2016 LifeWay Research survey, 79 percent of Americans said they do not believe it appropriate for pastors to endorse candidates during church services. Meanwhile, 52 percent also said that churches should not lose their tax-exempt status for publicly taking a political stance.